Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.I think we can immediately dispense with the crazies who think this statement should disqualify Sotomayor for the Supreme Court. It's worth noting that William Rehnquist once endorsed segregation, and yet rose to be Chief Justice of the court.
That said, I think Sotomayor's statement is quite wrong. I understand the basis of it, laid out pretty well by Kerry Howley over at Hit & Run. The idea is that Latinos have a dual experience that whites don't have and that, all things being equal, they'll be able to pull from that experience and see things that whites don't. The problem with this reasoning is it implicitly accepts the logic (made for years by white racists) that there is something essential and unifying running through all white people, everywhere. But White--as we know it--is a word so big that, as a descriptor of experience, it almost doesn't exist.
Indeed, it's claims are preposterous. It seeks to lump the miner in Eastern Kentucky, the Upper West Side Jew, the yuppie in Seattle, the Irish Catholic in South Boston, the hipster in Brooklyn, the Cuban-American in Florida, or even the Mexican-American in California all together, and erase the richness of their experience, by marking the bag "White." This is a lie--and another example of how a frame invented (and for decades endorsed) by whites is, at the end of the day, bad for whites. White racism, in this country, was invented to erase the humanity and individuality of blacks. But for it to work it must, necessarily, erase the humanity of whites, too.
Sotomayor, unwittingly, buys into that logic by conjuring the strawman of "a white male." But, in the context that she's discussing, no such person exists. What is true of the straight Polish-American in Chicago, may not be true for the white gay dude working in D.C. I'm not even convinced that what is true for the white dude in West Texas, is true for the white dude in Austin--or that what's true of the white dude in Austin, is true of other white dudes in Austin. There's just too much variation among people to make such a broad statement about millions of people.
I think this blog offers some context for what I'm writing here. I hope people won't interpret this as an "End of Racism" argument. It really should go without saying that people act on falsehoods all the time. I also don't raise this as an argument for why Sotomayor should not be on the Supreme Court. I raise it because I think a lot of us would do well to challenge our thinking in spaces like this. I know I would.